This blog continues the discussion that we began with Epic Journey: The 2008 Elections and American Politics (Rowman and Littlefield, 2009).The latest book in this series is Defying the Odds: the 2016 Elections and American Politics.

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Tuesday, November 22, 2011

Coordination Rules

“The restrictions on interactions between candidates and Super PACs are far more modest than the public believes,” said Paul Ryan, a lawyer with Campaign Legal Center [3], a campaign-finance advocacy group.

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In guidance handed down [10] by the FEC in July, the commission allowed candidates to help fundraise for the supposedly independent groups, on the premise that it was, after all, only coordinated spending that was banned.

The FEC did place [11] a few restrictions: Candidates still can’t solicit unlimited donations or corporate donations to the Super PACs, but they can ask for contributions within the traditional $5,000 contribution limits that apply to direct donations. Whether that limit is meaningful is up for debate — donors can still give as much as they want.

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Last month, Democratic Sen. Ben Nelson of Nebraska appeared in a political ad. No, not an ad by his own campaign, but a supposedly uncoordinated ad [18] paid for by Democratic Party officials.

The ad prompted American Crossroads, a Republican-leaning Super PAC set up by Karl Rove, to ask the FEC for permission to do the same — to create advertisements that “would be fully coordinated [19]” [PDF] with candidates “insofar as each Member would be consulted on the advertisement script and would then appear in the advertisement.”

How can “fully coordinated” ads not run afoul of the limits on coordination?

The FEC has a two-part coordination test that’s as detailed as it is permissive: The first part is whether groups and candidates have conducted themselves in a way that’s coordinated, such as discussing the particulars of an ad buy. The second part is a more complicated test that looks at the timing to an election and the content of the ad, such as whether it essentially advocates for or against a candidate.

In its request, American Crossroads announced its intent to fully coordinate its ad with a candidate, but argued that the ad it intends to produce could also be interpreted as an issue ad that happens to improve the public image of a candidate for office, but not an ad that advocates for the candidate’s election.

The request was spoofed by Stephen Colbert in a must-read comment letter [20] to the FEC. The issue has yet to be decided by the commission.